|
|||||||||||
|
|||||||||||
Full Text Below: |
|||||||||||
|
April 12, 1999 Thank you for the recent letter! You have affirmed my previous correspondence that accused you of being misinformed, of lying and attempting to commit mail fraud. Now that I have elevated the level of honesty of this matter you have, at least, made it clear you are mistaking Rusty Robinson for someone else. I can now document that you lied about your “10 year brand”. The facts of registration show that you only claim first use of the servicemark as 1997. I was also correct that your 1998 filings were for merchandising related to the Warner Brothers movie deal. That makes my prior registration of the domain name you claim is “similar” a mere coincidence. In fact, it begs the question of why AOL had not registered marks and domain names years ago at a trifling cost. The answer, I believe, is that you only thought of this “after the fact” when the movie was released. Thus your actions towards me are reprehensible. You failed to do your job in the past, now you want to bully me into giving you my artistic property. I have recently received a rather inaccurate, threatening letter. If you want to “blow smoke” at me don't waste your time; try it with a Federal Judge. I trust the Court has more intelligence than AOL has so far displayed in this matter. Your last letter documents confusion about the difference between trademarks and servicemarks. It is mistakenly claimed I am infringing on an AOL trademark. A trademark is for a commodity. So what is the commodity with which you claim I'm confusing AOL members? There obviously is no commodity involved. Nor is there any “commercial purpose” involved.
Facts1) I registered my domain name before you had registered any trademarks or servicemarks. Therefore I was not “cyber squatting” (RE: The Panavision case) or trying to harm AOL in any way. 2) You claim I am infringing on a trademark protected before you formally registered it. I agree you have protection of the voice saying “You've got mail!” – but that is a service mark. You have instead accused me of violating your trademarks. 3) How can you claim I am infringing upon your marks simply by registering a domain? The mere registration of domains, even trademarked ones has been ruled (by the court) in the past as an act that does not “confuse” the public. 4) In this instance I did not register a protected mark. You had not yet registered anything. Furthermore, it is only your claim that servicemark “YOU'VE GOT MAIL!” as a voice is similar to a domain name. Yours is a service of providing email accounts. I provide nothing – no competing service at all. 5) Eudora Email, which I have used for years prior to my domain registration, also announces email with the message “YOU HAVE NEW MAIL”. In fact, now with MAC OS 8.5 the computer reads such messages. In other words, my Apple computer now speaks the words “YOU HAVE NEW MAIL!” – just as the AOL service speaks the similar phrase “YOU'VE GOT MAIL!” But what you are really after is my domain name. Why? Because you failed to think of it, reserve it or register it. Now Warner Brothers has a youvegotmail.com website with a license from you and you want to seize my artistic property. 6) JFAX has registered service marks for directly competing services with AOL. Look at the record: Word Mark YOU'VE GOT VOICE MAIL Pseudo Mark YOU HAVE GOT VOICE MAIL Owner Name (APPLICANT) JFAX Communications, Inc. Owner Address 10960 Wilshire Boulevard #500 Los Angeles CALIFORNIA 90024 CORPORATION CALIFORNIA Attorney of Record ERIC S HYMAN Serial Number 75-478310 Filing Date 05/01/1998 Section 1(B) indicator SECTION 1 (B) Mark Drawing Code (1) TYPED DRAWING Register PRINCIPAL Type of Mark SERVICE MARK International Class 038 Goods and Services communication services ___________________________________________________________________________ Word Mark YOU'VE GOT A FAX Pseudo Mark YOU HAVE GOT A FAX Owner Name (APPLICANT) JFAX Communications, Inc. Owner Address 10960 Wilshire Boulevard, #500 Los Angeles CALIFORNIA 90024 CORPORATION CALIFORNIA Attorney of Record ERIC S HYMAN Serial Number 75-477787 Filing Date 05/01/1998 Section 1(B) indicator SECTION 1 (B) Mark Drawing Code (1) TYPED DRAWING Register PRINCIPAL Type of Mark SERVICE MARK International Class 038 Goods and Services communication services ____________________________________________________________________________ Word Mark YOU'VE GOT E-MAIL Pseudo Mark YOU HAVE GOT E MAIL Owner Name (APPLICANT) JFAX Communications, Inc. Owner Address 10960 Wilshire Boulevard, #500 Los Angeles CALIFORNIA 90024 CORPORATION CALIFORNIA Attorney of Record ERIC S HYMAN Serial Number 75-477785 Filing Date 05/01/1998 Section 1(B) indicator SECTION 1 (B) Mark Drawing Code (1) TYPED DRAWING Register PRINCIPAL Type of Mark SERVICE MARK International Class 038 Goods and Services communication services 7) You say my domain name is “similar” and might “confuse” AOL members. Well how do you explain these marks?
How can you claim , which provides no service and sells no commodities, is “similar” to “YOU'VE GOT MAIL!” – an online email service? In point of fact “YOU HAVE NEW MAIL”, “YOU'VE GOT VOICE MAIL”, GOTMAIL.COM, and “YOU'VE GOT EMAIL” are registered service marks. These are described as “communication services”. Isn't that how you would describe the AOL service mark for what you provide? Eudora has used “YOU HAVE NEW MAIL” with impunity for years. If one can add “NEW” (Qualcomm) or “E” or “VOICE”(JFAX), and therefore not be similar why isn't “you-got-mail.com” also dissimilar enough such that you leave me alone? It does not have the “'VE” or “HAVE”, it is lowercase, it has dashes and it has a “dot com”. Most significantly it does not provide anything which might be a source of confusion over the AOL marks. 8) The “legal” argument in your letter focuses only upon TRADEMARKS, not SERVICEMARKS. Where are the SIMILAR COMMODITIES? There has not been any relevant argument made to date such that an AOL member would be confused by my domain name registration. Here are the facts of registration regarding your trademarked commodities International Class 009 Goods and Services - prerecorded audio and video cassettes and compact disc, featuring movies, music interview, display of talent, graphics, computer programs; peripherals International Class 016 Goods and Services - publications and printed matter, namely, magazines, books, pamphlets, manuals, catalogues, newspapers, and instructional and teaching materials covering topics of general interest in the fields of computers and entertainment; coloring books, decals, posters, postcards, and calendars International Class 025 Goods and Services - Clothing, namely, shirts, t-shirts, sweat suits, jackets, sweaters, pants, shorts, socks, belts, and hats; footwear Etc. Where have you documented Rusty Robinson selling AOL brand shirts, t-shirts, sweat suits, jackets, sweaters, pants, shorts, socks, belts, and hats; footwear? Have you any evidence that I am selling “prerecorded audio and video cassettes and compact disc, featuring movies, music interview, display of talent, graphics, computer programs; peripherals”? I simply do not sell any of these commodities. Even with a website there could be no “confusion” to AOL members unless the website competed with AOL by offering a similar online email service or sold your trademarked commodities. But I do not, and have not. Still you harp on this TRADEMARK issue. Don't you mean SERVICEMARK? OK, then what is the service? Your servicemark registration specifies this International Class 042 Goods and Services - Computer services, namely, providing multiple user access to computer networks and bulletin boards for the transfer and dissemination of a wide range of information; providing online computer network facilities for real-time interaction and communication with other computer users concerning topics of general interest; providing a wide range of general interest information via computer networks. How am I providing a similar service? I am not. Can you show evidence that I am “providing online computer network facilities for real-time interaction and communication”? Of course not! Instead of specifying the servicemark you have incorrectly claiming that I am using your trademark. Yes, I registered a domain at a time when AOL HAD NOT YET REGISTERED any trademarks. You had protection (without having to register) of your guys voice shouting out “YOU'VE GOT MAIL!” – a service mark, NOT a trademark! And the service protected was “Computer services, namely, providing multiple user access to computer networks and bulletin boards for the transfer and dissemination of a wide range of information; providing online computer network facilities for real-time interaction and communication with other computer users concerning topics of general interest; providing a wide range of general interest information via computer networks.” Where is there any evidence that I confused AOL members by providing the services listed above? There is no such evidence. A domain name is not a computer communications service. How can a domain name registration confuse AOL members? Are you worried a member might be poking around in the INTERNIC archives and discover my domain? That is absurd. 9) Are you confusing me with someone else? Your last letter lectures “It is (unlawful)...to use for commercial purposes the trademarks of others in a way that is likely to cause confusion among customers....”
10) Flat out – you have not made any valid legal arguments. I have to view this with a perspective of past AOL behavior. AOL has a history of abuse towards customers and website owners as documented by webpages and newsgroups such as AOL SUCKS, AOHELL, etc. Your actions in this matter appear to me to be consistent with AOL tyranny as a general case. This attempt to defraud out of my legally obtained artistic property is a reflection of how out of touch AOL is with respect to reality.
So I can not help but view your legal abuse towards me as typical of documented AOL tactics. You have literally documented your own lies and threats. I am not some leech infringing on your marks. I resent these vile letters trying to defraud me out of my artistic property. If you can get a Federal Judge to believe such obviously false legal arguments then file your brief. I now believe it may be the only way to stop you from harassing me. There can be no telephone conversations over this, as I must have anything you say in written form on your stationary and signed. This stipulation also rules out any email correspondence. I have done absolutely nothing to harm your client AOL. Please get that straight. As to your threat to take this up with the courts I can only implore you to read this letter over again. You have no proof that I did anything to violate Federal trademark laws. By the way, I know this sounds kind of dumb to an attorney but I'm an old fashion sort of guy; did it ever occur to you to treat people with respect and consideration instead of lies, threats and abuse? Try some respect and honesty with me and see what you get. The bottom line is that AOL failed to register marks and domain names in a timely fashion when they were available to anyone at insignificant cost. You are now trying to intimidate myself and others into handing over web properties because of your deal with the Warner Brothers youvegotmail.com website. Isn't that the real truth? Sincerely yours, Rusty Robinson |
|||||||||||
|
Home
| AOL Barnyard | Web Links
| Read
the Email | AOL
Threat letter | Respone
#1 | Response #2
|
